| The new Marriage Law of our country has formally established the right for spouses and its protection system in legislation, making conjugal right an important right in the Marriage Law related to familiy lives. But the confirmation in legislation does not really means that there will be no dispute occurring on this subject theoretically, and it is far from an easy matter to make the conjugal right operative judicially. So the writer of the essay , based on what he had learned, the research he has undertaken and the judicial practices , is intending to make an analysis and discussion on the concept and contents of conjugal right, its legal characteristics, the infringement of conjugal right, its protection as well as the legal liabilities for infringement of conjugal right in order to offer some help to the advancement of Marriage Law and the judicial practices on family disputes settlement. This article is divided into three parts:The first part mainly describes and analyses the concept, contents, legal characteristics of conjugal right and its legal significance. According to the analysis on different understanding in our country and abroad, the concept of conjugal right could be defined as: an equally and solely shared status right between the spouses, based on the legal marriage relationship. The contents includes: 1. Right of having a name of the spouse. It means that any one (especially the wife) of the spouses has the right to have his (her) own name after the establishment of marriage relationship. 2. Residence decision right. It refers to the right t select the common residence after the establishment of the marriage relationship. 3. Obligation for conjugation. It means that any one of the spouses has the obligation to live together according to the conjugal relationship, and this is the essential obligation of the spouses. 4. Co-operation duties. It means that any one of the spouses has the duty to co-operate with the other one and help the other one in daily life according to the marriage relationship of the spouses. 5. Commission for daily life, also called commission for family duties. It means that any one of the spouses has the commission to deal with matters which relates to the third party in place of the other one of the spouses. 6. Obligation of loyalty. It is also called the exclusive obligation for sexual life between the spouses. It refers to the obligation of loyal sexual life. It requires each of the spouses be loyal to the other, and each of the spouses has the obligation to abstain from out-of -marriage sexual intercourse. 7. Other obligations between spouses, includes right for freely select occupations, right for application for missing announcement, right for application for death announcement, right for acting as legal representatives, right for application for the announcement of civil disability or limited civil ability, right for supervision etc, all of these are the basic rights and obligations occurred or may occur based on the relationship of spouses. The legal characteristics are: 1. the conjugal right has the status nature. 2. the conjugal right has the equality nature. 3. the conjugal right has the arrangement nature.4.The conjugal right has the exclusive nature. The legal significance of the regulation of conjugal right is also described in this part.The second part analyzed the infringement, the element for infringement, the infringement subject and the action of infringement. The article offers four elements that constitute the infringement: 1.Action of breaking the law. 2. Fact of damage. 3. The cause-and-result relationship between the action of breaking law and the fact of damage. 4.Subjective mistake. According to the difference of the numbers who infringe the conjugal right, the action for infringement could be divided into two types: one is the action for infringement concurrently with others, which includes direct infringement action and indirect infringement action; Direct infringement of conjugal right includes cohabiting with others, re-m... |
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